Brown

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

SAMMY L. BROWN,

DECISION AND ORDER

Plaintiff,

6:22-CV-06549 EAW

v.

J. DONAHUE and MS. O’DELL,

Defendants.

_____________________________________

INTRODUCTION

Pro se plaintiff Sammy L. Brown (“Plaintiff”) is an inmate in the custody of the

New York State Department of Corrections and Community Supervision (“DOCCS”). The

Court previously screened Plaintiff’s amended complaint—the operative pleading—

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) and allowed the following claims to

proceed to service against defendants J. Donahue, Tammy Hickey (“Hickey”), Ms. O’Dell,

and D. Moore-Bashta (“Moore-Bashta”): (1) interference with legal mail in violation of the

First Amendment; and (2) denial of access to the courts. (Dkt. 15). On April 25, 2024, the

Court granted a motion to dismiss filed by Moore-Bashta based on failure to exhaust

administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42

U.S.C. § 1997e. (Dkt. 27). Thereafter, on August 4, 2025, Hickey was terminated as a

defendant due to her death and the failure to substitute. (See Dkt. 33). Thus, the remaining

defendants are J. Donahue and Ms. O’Dell (hereinafter “Defendants”).

Presently before the Court is a motion to dismiss filed by Defendants. (Dkt. 36).

Defendants seek dismissal of Plaintiff’s claims on the basis that he failed to exhaust his

administrative remedies as required by section 1997e of the PLRA. For the reasons that

follow, the Court grants Defendants’ motion.

BACKGROUND

The factual background underlying Plaintiff’s claims is set forth in detail in the

Court’s Decisions and Orders dated July 17, 2023 (Dkt. 11), January 2, 2024 (Dkt. 15), and

April 25, 2024 (Dkt. 27), familiarity with which is assumed for purposes of this Decision

and Order. The Court has summarized below only those facts that are relevant to Plaintiff’s

failure to exhaust.

Plaintiff claims to have been denied access to legal documents mailed to him by his

attorney and related to his underlying criminal case. (See Dkt. 12 at 5-6). Plaintiff filed a

grievance, and a decision was issued by the Inmate Grievance Resolution Committee

(“IGRC”) on August 25, 2022. (Id. at 45). Plaintiff appealed to the superintendent of the

facility on August 31, 2022. (Id.). Defendant J. Donahue, the superintendent of the Elmira

Correctional Facility, denied the grievance on October 13, 2022. (Id. at 16, 46). On

October 16, 2022, Plaintiff authored an appeal to the Central Office Review Committee

(“CORC”). (Id. at 14-15). He commenced the instant action 29 days later, on November

14, 2022. (Dkt. 1).1

1 The matter was originally filed in the United States District Court for the Southern

District of New York, but was subsequently transferred to this District. (Dkt. 4). While

the Southern District did not receive the complaint until November 18, 2022, it was mailed

on November 14, 2022. (Dkt. 2 at 25); see United States v. Resnick, 451 F. Supp. 3d 262,

As noted above, this Court has already dismissed the claims against Moore-Bashta

for failure to exhaust administrative remedies as required by the PLRA. (Dkt. 27).

Defendants now seek the same relief with the pending motion to dismiss. (Dkt. 36).

Plaintiff filed a memorandum in opposition. (Dkt. 38).

DISCUSSION

I. Legal Standard—Rule 12(b)(6)

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund

v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant

must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542,

546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

269 (S.D.N.Y. 2020) (“[T]he ‘prisoner mailbox rule’ . . . provides that an inmate’s papers

are deemed filed the day that they are signed and given to prison officials for mailing.”).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal

quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual

allegations must be enough to raise a right to relief above the speculative level.’” Nielsen

v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at

555).

II. Exhaustion Under the PLRA

“The PLRA requires an inmate to exhaust all available administrative remedies

before bringing a federal civil rights action.” Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir.

2020) (quotation omitted). “[I]t is the prison’s requirements, and not the PLRA, that define

the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).

In New York, an inmate must submit a grievance within 21 days of an alleged

occurrence. 7 N.Y.C.R.R. § 701.5(a)(1). The IGRC then has 18 days to render a decision.

Id. § 705.1(b)(2)(ii), (b)(3)(i). The inmate then has seven days to appeal to the

superintendent of the facility. Id. § 701.5(c). The superintendent has 20 days to render a

decision. Id. The inmate then has seven days to appeal to the CORC. Id. § 701.5(d)(1).

The CORC must issue a decision within 30 days of receipt of the appeal.

Id. § 701.5(d)(2)(ii).

III. Plaintiff did not Exhaust his Administrative Remedies Before Commencing

this Lawsuit

It is clear from the face of Plaintiff’s amended complaint and the exhibits thereto

that he did not exhaust his administrative remedies prior to commencing the instant lawsuit.

The Second Circuit has held that an inmate “must actually wait for [the CORC] deadline

to expire before filing suit.” Hayes, 976 F.3d at 271 (affirming dismissal of claim where

inmate filed his lawsuit “only 26 days after the CORC received the appeal of his grievance

against the superintendent, four days short of the 30-day deadline for the CORC to

respond”). Here, Plaintiff authored his appeal to the CORC on October 16, 2022. (Dkt.

12 at 14). Even making the improbable assumption that it was mailed to and received by

CORC that same day, the 30-day deadline did not expire until November 15, 2022.

Accordingly, when Plaintiff commenced this lawsuit on November 14, 2022, he had not

exhausted his administrative remedies.

Plaintiff’s only argument in opposition to the pending motion is that “special

circumstances” justified his failure to exhaust. (Dkt. 38 at 2). Namely, Plaintiff contends

that he had to “hurriedly” commence this action to stop Defendants from withholding his

legal documents needed to pursue relief in his criminal case. (Id. at 3). But in Ross v.

Blake, 578 U.S. 632 (2016), “the Supreme Court made it clear that courts may not excuse

a prisoner’s failure to exhaust because of ‘special circumstances.’” Allen v. Doe #1, No.

9:21-CV-675 (LEK/ATB), 2022 WL 7276713, at *2 (N.D.N.Y. Apr. 15, 2022), report and

recommendation adopted, No. 9:21-CV-00675 (LEK/ATB), 2022 WL 4354368 (N.D.N.Y.

Sept. 20, 2022) (quoting Ross, 578 U.S. at 640).

For these reasons, as well as the reasons set forth in the Court’s Decision and Order

filed April 25, 2024 (Dkt. 27), the Court finds that Plaintiff failed to exhaust his

administrative remedies prior to commencing this action. Accordingly, the Court grants

Defendants’ motion to dismiss, and dismisses the claims without prejudice. See Berry v.

Kerik, 366 F.3d 85, 88 (2d Cir. 2004).

CONCLUSION

For the foregoing reasons, the Court grants Defendants’ motion to dismiss (Dkt.

36) and dismisses the complaint without prejudice. Because all claims have been dismissed

without prejudice for failure to exhaust, the Clerk of Court is directed close the case.

SO ORDERED.

Last

ELIZABETHA. WOLFORD

Chief Judge

United States District Court

Dated: March 2, 2026

Rochester, New York

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